Citation Nr: 0815584
Decision Date: 05/13/08 Archive Date: 05/23/08
DOCKET NO. 05-33 313 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to service connection for arthritis of the
hands and fingers.
2. Entitlement to service connection for a left shoulder
disability.
3. Entitlement to service connection for left Achilles
tendonitis.
4. Entitlement to service connection for a chronic
disability manifested by left-sided sensory deficit and
weakness.
5. Entitlement to service connection for alopecia.
6. Entitlement to service connection for diabetes mellitus,
type II.
7. Entitlement to service connection for hearing loss of the
left ear.
8. Entitlement to an increased evaluation for hearing loss
of the right ear, currently evaluated as noncompensable.
9. Entitlement to an increased evaluation for coronary
artery disease, currently evaluated as 10 percent disabling.
10. Entitlement to an increased evaluation for bilateral
pterygia, currently evaluated as noncompensable.
11. Entitlement to an increased evaluation for bilateral
ethmoid and maxillary sinus disease, currently evaluated as
noncompensable.
12. Entitlement to an increased evaluation for hemorrhoids,
currently evaluated as noncompensable.
13. Entitlement to service connection for a right upper
quadrant disability.
REPRESENTATION
Veteran represented by: Fleet Reserve Association
ATTORNEY FOR THE BOARD
H. Seesel, Associate Counsel
INTRODUCTION
The veteran had active service from March 1983 until
September 2003.
This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from August 2003 and March 2005 rating
decisions from the Department of Veterans Affairs (VA)
Regional Office (RO) in St. Petersburg, Florida.
In his August 2005 VA Form 9, the veteran requested a Board
hearing at the RO. In October 2005, the veteran submitted
notice to the RO that he no longer wanted a hearing.
Therefore, the request for a Board hearing at the RO is
deemed withdrawn and the Board will continue with the appeal.
See 38 C.F.R. § 20.704(d).
The issues of entitlement to increased evaluations for
coronary artery disease, hearing loss of the right ear,
hemorrhoids and sinusitis and the issues of entitlement to
service connection for arthritis of the hands and fingers, a
chronic disability manifested by left sided sensory deficit
and weakness, hearing loss of the left ear and a right upper
quadrant condition are being remanded and are addressed in
the REMAND portion of the decision below and are REMANDED to
the RO via the Appeals Management Center (AMC), in
Washington, DC.
FINDINGS OF FACT
1. The veteran is not shown to have a currently diagnosed
disability related to the left shoulder.
2. The veteran is not shown to have a currently diagnosed
disability related to the left Achilles tendon.
3. The veteran is not shown to have a currently diagnosed
disability of alopecia.
4. The veteran is not shown to have a currently diagnosed
disability of diabetes mellitus.
5. The veteran's bilateral pterygia do not result in a loss
of visual acuity.
CONCLUSIONS OF LAW
1. The criteria for entitlement to service connection for a
left shoulder condition have not been met. 38 U.S.C.A.
§§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R.
§§ 3.102, 3.159, 3.303, 3.304 (2007).
2. The criteria for entitlement to service connection for
left Achilles tendonitis have not been met. 38 U.S.C.A.
§§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R.
§§ 3.102, 3.159, 3.303, 3.304 (2007).
3. The criteria for entitlement to service connection for
alopecia have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103,
5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303,
3.304 (2007).
4. The criteria for entitlement to service connection for
diabetes mellitus have not been met. 38 U.S.C.A. §§ 1110,
1112, 1113, 1131, 1133, 1137, 5103, 5103A, 5107 (West 2002);
38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2007).
5. The criteria for an initial compensable evaluation for
residuals bilateral pterygium have not been met. 38 U.S.C.A.
§§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102,
3.159, 3.321, 4.1-4.14, 4.75-4.84, 4.84a, Diagnostic Code
6034 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), the United States Department of Veterans Affairs (VA)
has a duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his representative, if any, of any information,
and any medical or lay evidence, that is necessary to
substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R.
§ 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).
Proper notice from VA must inform the claimant of any
information and evidence not of record (1) that is necessary
to substantiate the claim; (2) that VA will seek to provide;
(3) that the claimant is expected to provide; and (4) must
ask the claimant to provide any evidence in her or his
possession that pertains to the claim in accordance with
38 C.F.R. § 3.159(b)(1). This notice must be provided prior
to an initial unfavorable decision on a claim by the agency
of original jurisdiction (AOJ). Mayfield v. Nicholson, 444
F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet.
App. 112 (2004).
In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S.
Court of Appeals for Veterans Claims held that, upon receipt
of an application for a service-connection claim, 38 U.S.C.
§ 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the
information and the evidence presented with the claim and to
provide the claimant with notice of what information and
evidence not previously provided, if any, will assist in
substantiating, or is necessary to substantiate, each of the
five elements of the claim, including notice of what is
required to establish service connection and that a
disability rating and an effective date for the award of
benefits will be assigned if service connection is awarded.
Here, the VCAA duty to notify was satisfied by way of letters
sent to the veteran dated in December 2003 and December 2004
that fully addressed all notice elements of Quartuccio v.
Principi, 16 Vet. App. 183 (2002). Although the notice
provided did not address either the rating criteria or
effective date provisions that are pertinent to the veteran's
claims, such error was harmless given that service connection
is being denied and hence no rating or effective date will be
assigned with respect to the claimed conditions. See Bernard
v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board
addresses a question that has not been addressed by the
agency of original jurisdiction, the Board must consider
whether the veteran has been prejudiced thereby).
During the pendency of the appeal, however, the U.S. Court of
Appeals for Veterans Claims held that for an increased-
compensation claim, section § 5103(a) requires, at a minimum,
that VA notify the claimant that, to substantiate a claim,
the medical or lay evidence must show a worsening or increase
in severity of the disability, and the effect that such
worsening or increase has on the claimant's employment and
daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008).
Further, if the diagnostic code under which the claimant is
rated contains criteria necessary for entitlement to a higher
disability rating that would not be satisfied by
demonstrating a noticeable worsening or increase in severity
of the disability and the effect that worsening has on
employment and daily life (such as a specific measurement or
test result), VA must provide at least general notice of that
requirement. VA must also provide examples of the types of
medical and lay evidence that the claimant may submit (or ask
the Secretary to obtain) that are relevant to establishing
entitlement to increased compensation. Id.
The Board notes, however, that the increased rating claims on
appeal stem from the initial rating decision and therefore
Vazquez- Flores notice is not strictly mandated. For
example, in Dingess, the Court of Appeals for Veterans Claims
held that in cases where service connection has been granted
and an initial disability rating and effective date have been
assigned, the typical service-connection claim has been more
than substantiated, it has been proven, thereby rendering
section 5103(a) notice no longer required because the purpose
that the notice is intended to serve has been fulfilled. Id.
at 490-91. Therefore proceeding with the appeals presently
does not therefore inure to the appellant's prejudice. See
Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the
Board addresses a question that has not been addressed by the
agency of original jurisdiction, the Board must consider
whether the veteran has been prejudiced thereby).
VA has a duty to assist the veteran in the development of the
claim. This duty includes assisting the veteran in the
procurement of service medical records and pertinent
treatment records and providing an examination when
necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
The Board finds that all necessary development has been
accomplished, and therefore appellate review may proceed
without prejudice to the appellant. See Bernard v. Brown, 4
Vet. App. 384 (1993). The RO has obtained the service
medical records, VA outpatient treatment records and private
medical records. The veteran submitted private medical
records in support of his claim. Significantly, neither the
veteran nor his representative has identified, and the record
does not otherwise indicate, any additional existing evidence
that is necessary for a fair adjudication of the claim that
has not been obtained. Additionally, the Board notes that
the veteran participated in the Benefits Delivery at
Discharge Program and advised the RO in May 2003 that he had
no additional evidence to submit. Hence, no further notice
or assistance to the appellant is required to fulfill VA's
duty to assist the appellant in the development of the claim.
Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384
(Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143
(2001); see also Quartuccio v. Principi, 16 Vet. App. 183
(2002).
The Merits of the Claims
Service connection will be granted if it is shown that a
veteran has a disability resulting from an injury or disease
contracted in the line of duty, or for aggravation of a
preexisting injury or disease contracted in the line of duty
in the active military, naval or air service. 38 U.S.C.A.
§§ 1110, 1131; 38 C.F.R. § 3.303. That an injury incurred in
service alone is not enough. There must be chronic
disability resulting from that injury. If there is no
showing of a resulting chronic condition during service, then
a showing of continuity of symptomatology after service is
required to support a finding of chronicity. 38 C.F.R.
§ 3.303(b).
Service connection may also be granted for certain chronic
diseases, such as arthritis and diabetes mellitus, when such
disease is manifested to a compensable degree within one year
of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113,
1133, 1137; 38 C.F.R. §§ 3.307, 3.309. In addition, service
connection may be granted for any disease diagnosed after
discharge, when all of the evidence, including that pertinent
to service, establishes that a disease was incurred in
service. 38 C.F.R. § 3.303(d). Generally, to prove service
connection, the record must contain: (1) medical evidence of
a current disability, (2) medical evidence, or in certain
circumstances, lay testimony of an inservice incurrence or
aggravation of an injury or disease, and (3) medical evidence
of a nexus between the current disability and the inservice
disease or injury. Pond v. West, 12 Vet. App. 341 (1999);
Caluza v. Brown, 7 Vet. App. 498 (1995).
Left Shoulder Disability
The veteran seeks service connection for a left shoulder
disability. Service medical records demonstrated an
acromioclavicular strain in November 1998 and a questionable
acromioclavicular separation in February 1999. Subsequent
records, however, failed to document any residual problem
from these shoulder injuries. Significantly, the July 2003
VA examination concluded that there was no residual problem
of the left shoulder. None of the other post-service medical
records document any current complaints, treatment or
diagnoses of a left shoulder disability. Under these
circumstances, for the Board to conclude that the veteran has
a left shoulder disability that had its origin during service
would be speculation, and the law provides that service
connection may not be granted on a resort to speculation or
remote possibility. 38 C.F.R. § 3.102; Obert v. Brown, 5 Vet.
App. 30, 33 (1993). Simply put, in the absence of a present
disability that is related to service, a grant of service
connection is clearly not supportable. See Brammer v.
Derwinski, 3 Vet. App. 223, 225 (1992).
While the veteran is clearly of the opinion that he has a
current left shoulder disability that is related to service,
as a layperson, he is not competent to offer an opinion that
requires specialized training, such as the diagnosis or
etiology of a medical disorder. Espiritu v. Derwinski, 2 Vet.
App. 492, 494 (1992). Accordingly, service connection for a
left shoulder disability is not established in the absence of
competent medical evidence of a current disorder and
competent medical evidence demonstrating a relationship
between a current disorder and service.
Achilles Tendonitis
The veteran seeks service connection for left Achilles
tendonitis. While the service medical records clearly
reflected treatment for Achilles tendonitis in 1997,
subsequent records failed to demonstrate any residual
disability from this condition. Significantly, the July 2003
VA examination concluded the veteran was status post Achilles
tendonitis, not usually symptomatic but occasionally
problematic upon long walks or running.
To the extent the veteran currently has or complains of pain
or discomfort of the Achilles tendon with exercise, it has
not been linked to any currently diagnosed disorder. In this
respect, it is not a disorder for which service connection
may be granted. See Sanchez-Benitez v. West, 13 Vet. App.
282, 285 (1999) ("pain alone, without a diagnosed or
identifiable underlying malady or condition, does not in and
of itself constitute a disability for which service
connection may be granted."); dismissed in part and vacated
in part on other grounds, Sanchez-Benitez v. Principi, 239
F.3d 1356 (Fed. Cir. 2001).
As noted above a threshold requirement for the granting of
service connection is evidence of a current disability. In
the absence of evidence of a current disability there can be
no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225
(1992). Accordingly, service connection for Achilles
tendonitis of the left foot is denied.
Alopecia
The veteran seeks service connection for alopecia. While the
service medical records clearly reflected treatment for
alopecia in April 1997, subsequent records demonstrated no
residual disease from this condition. For example, during
the July 2003 VA examination, the veteran explained he was
diagnosed with alopecia areata in 1997 but indicated the hair
had grown back and denied current symptoms. The examiner
concluded there was alopecia areata, essentially completely
recovered.
As noted above, a threshold requirement for the granting of
service connection is evidence of a current disability. In
the absence of evidence of a current disability there can be
no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225
(1992). Accordingly, service connection for alopecia is not
established in the absence of competent medical evidence of a
current disorder and competent medical evidence demonstrating
a relationship between a current disorder and service.
Diabetes mellitus
The veteran seeks service connection for diabetes mellitus.
Having carefully considered the claim in light of the record
and the applicable law, the Board is of the opinion that the
preponderance of the evidence is against the claim and the
appeal will be denied. While the record reflects findings of
"borderline diabetes" no diagnosis of diabetes mellitus was
made.
Private medical records dated in April 2004 reflected an
elevated glucose level of 113. The veteran was given
instruction on hyperglycemia and was encouraged to increase
exercise and control his diet. An accucheck machine was
prescribed. Another record dated in April 2004 reflected a
diagnosis of questionable diabetes. An August 2004 private
treatment record indicated the veteran was seen for
borderline diabetes. A fasting sugar test was performed and
the physician concluded the veteran was a nondiabetic. A
November 2004 private record related the veteran was
concerned over elevated blood sugar findings. The physician
noted the veteran had a home fasting blood sugar in the 200s
and was possibly prediabetic.
The veteran was afforded a VA examination in February 2005 to
specifically assess whether or not he had a current diagnosis
of diabetes mellitus. During this examination, the veteran
indicated he was diagnosed with diabetes in 2002. He
indicated he was prescribed a glucometer. The veteran
related that he was later released from care in November 2004
as the practitioner informed him he did not have diabetes
mellitus type 2. The examiner noted the veteran's retirement
physical examination dated in December 2002 was silent for a
diagnosis of diabetes mellitus type 2. The veteran denied
taking any medications, including oral hypoglycemic agents or
insulin for the condition. He denied hospitalization for
diabetes, ketoacidosis or hypoglycemic reaction. He denied
any restriction in activities on account of diabetes and did
not regularly follow with a diabetic care provider. He
denied anal pruritis, loss of strength, or diabetic
retinopathy. He described a history of hypertension,
diagnosed in July 2002. He denied related neurological
symptoms including bladder or bowel impairment.
Clinical evaluation reflected no evidence of heart failure.
There was no clubbing, cyanosis or edema of the lower
extremities and pulses and range of motion remained intact.
Sensory function was also intact. The examiner indicated
that without medical records or laboratory data he was unable
to opine whether or not the veteran had diabetes. The
examiner requested the veteran submit records and also
ordered a fasting laboratory test.
In a February 2005 addendum the VA examiner explained the
veteran submitted medical records and laboratory findings.
Laboratory findings in February 2005 demonstrated glucose of
99 nanograms per deciliter (ng/dl) and urinalysis showed no
glucose, ketone or protein. Laboratory findings from
November 2004 showed glucose of 90 ng/dl and findings from
April 2004 showed glucose of 113 ng/dl. Medical records were
silent for a diagnosis of diabetes or treatment for diabetes.
The examiner noted that one record described "borderline
diabetes" and prescribed accu-check strips and lancets.
However, records from July 2004 to December 2004 failed to
document a diagnosis of diabetes. Therefore, the examiner
opined based upon the evidence and laboratory data, the
veteran did not have evidence of diabetes type 2.
Thus, the evidence does not demonstrate a current diagnosis
of diabetes. A threshold requirement for the granting of
service connection is evidence of a current disability. In
the absence of evidence of a current disability there can be
no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225
(1992); see McClain v. Nicholson, 21Vet. App. 319
(2007)(finding that the requirement for a current disability
is satisfied if the claimant has a disability at the time a
claim was filed or at any time during the pendency of the
appeal, even if the disability resolves prior to he
Secretary's adjudication of the claim).
To the extent the veteran asserts he was informed by a prior
physician that he had diabetes, the Board notes that the
connection between what a physician said and the layman's
account of what the physician purportedly said, filtered as
it was through a layman's sensibilities, is simply too
attenuated and inherently unreliable to constitute "medical"
evidence. See Franzen v. Brown, 9 Vet.App. 235 (1996);
Robinette v. Brown, 8 Vet. App. 69 (1995).
Similarly, to the extent the veteran has elevated glucose
findings or "borderline" diabetes; these are laboratory
findings that do not yet support a diagnosis of diabetes.
Laboratory findings are not disabilities in and of themselves
for which VA compensation benefits are payable. See 61 Fed.
Reg. 20,440, 20,445 (May 7, 1996) (Diagnoses of
hyperlipidemia, elevated triglycerides, and elevated
cholesterol are actually laboratory results and are not, in
and of themselves, disabilities. They are, therefore, not
appropriate entities for the rating schedule.).
While the veteran is clearly of the opinion that he has
diabetes that is related to service, as a layperson, the
veteran is not competent to offer an opinion that requires
specialized training, such as the diagnosis or etiology of a
medical disorder. Espiritu v. Derwinski, 2 Vet. App. 492, 494
(1992). Accordingly, service connection for diabetes
mellitus is not established in the absence of competent
medical evidence of a current disability and competent
medical evidence demonstrating a relationship between a
current disorder and service.
Increased evaluation
The veteran seeks an increased initial evaluation for
bilateral pterygia. The RO initially granted service
connection for this condition in an August 2003 rating
decision. At that time, a noncompensable evaluation was
assigned pursuant to 38 C.F.R. § 4.84a, Diagnostic Code 6034.
The veteran contends the current rating evaluation does not
accurately reflect the severity of his disability. Having
carefully considered the claim in light of the record and the
applicable law, the Board is of the opinion that the
preponderance of the evidence is against the claim and the
appeal will be denied.
Disability evaluations are determined by evaluating the
extent to which a veteran's service-connected disability
adversely affects his ability to function under the ordinary
conditions of daily life, including employment, by comparing
his symptomatology with the criteria set forth in the
Schedule for Rating Disabilities. 38 U.S.C.A. § 1155;
38 C.F.R. § 4.1. Separate diagnostic codes identify various
disabilities and the criteria for specific ratings.
If two disability evaluations are potentially applicable, the
higher evaluation will be assigned if the disability picture
more nearly approximates the criteria required for that
evaluation. Otherwise, the lower rating will be assigned.
38 C.F.R. § 4.1. After careful consideration of the
evidence, any reasonable doubt remaining will be resolved in
favor of the veteran. 38 C.F.R. § 4.3.
While the veteran's entire history is reviewed when assigning
a disability evaluation, 38 C.F.R. § 4.1, where service
connection has already been established and an increase in
the disability rating is at issue, it is the present level of
disability that is of primary concern. Francisco v. Brown, 7
Vet. App. 55 (1994). However, the Board notes that the
veteran is appealing the initial assignment of a disability
rating, and as such, the severity of the disability is to be
considered during the entire period from the initial
assignment of the evaluation to the present time.
Fenderson v. West, 12 Vet. App. 119 (1999).
As noted above, the veteran's claim was evaluated under
Diagnostic Code 6034 for pterygium. This Diagnostic Code
mandates that pterygium should be rated on impairment of
vision. 38 C.F.R. § 4.84a. When practicable, ratings on
account of visual impairment are to be based upon examination
by specialists, including measurements for uncorrected and
corrected central visual acuity for distance and near based
on the Snellen's test type or its equivalent. 38 C.F.R.
§ 4.75. The best distant vision obtainable after best
correction will be the basis of the rating. 38 C.F.R. § 4.75.
In applying the ratings for impairment of visual acuity, a
person not having the ability to read at any of the scheduled
steps or distances, but reading at the next scheduled step or
distance, is to be rated as reading at this latter step or
distance. That is, a person who can read at 20/100 but who
cannot read at 20/70, should be rated as seeing at 20/100.
38 C.F.R. § 4.83. The percentage evaluation will be found
from Table V by intersecting the horizontal row appropriate
for the Snellen index for one eye and the vertical column
appropriate to the Snellen index of the other eye. 38 C.F.R.
§ 4.83a, Table V.
The veteran underwent a VA examination of the eyes in June
2003. During this examination he reported he had pterygia
since approximately 1987. He indicated they have grown over
the years and complained of an occasional foreign body
sensation and an encroachment upon the pupillary axis. He
underwent surgical excision of the left eye pterygium in
April 2003 and was scheduled for a surgical excision of the
pterygium of the right eye. He denied visual difficulty due
to ocular conditions. He complained of some residual
photophobia from the pterygia but denied any limitation in
performing activities of daily living. He denied any
incapacitation due to ocular conditions. He denied tearing
or distortion of images. He was not taking medication for
ocular condition.
Snellen visual acuity testing without correction revealed
visual acuity of 20/20 bilaterally. Near visual acuity with
readers was 20/20 bilaterally. Visual fields were full to
finger count in both eyes. There was no afferent papillary
defect. Ocular motility demonstrated full duction and
eversions bilaterally. Ocular motility pressure was 22
bilaterally. Slit lamp examination demonstrated normal lids
and lashes bilaterally. Conjunctivas were mildly injected
over the areas of the pterygium of the right eye. It was
also mildly injected over the area of the excised pterygium
of the left eye. The pteryium was nasal to the cornea in the
right eye and there was a scar nasally to the cornea of the
left eye. Anterior chambers were deep and quiet. Irises
were within normal limits. Both lenses were without
cataractous changes. Dilated fundus examination demonstrated
normal disc, macula, periphery and vessels bilaterally.
There was no retinal pathology noted on examination. The
diagnosis was bilateral pterygium for which the veteran
underwent surgical excision. There was a pterygium of the
right eye at the time of examination. The veteran complained
of photophobia which he attributed to the pterygium and also
an occasional foreign body sensation; however, best corrected
visual acuity was 20/20 both distance and near.
The veteran underwent a VA examination in July 2003. During
this examination he explained he had a pterygium removed form
the left eye in 1985 and indicated he was scheduled to have a
pterygium removed from the right eye. Clinical examination
revealed uncorrected visual acuity of 20/25 bilaterally.
Pupils were equal, round and reactive to light and
accommodation. There was no retinopathy. The diagnosis was
pterygium, right eye.
A January 2004 follow-up at the Naval Hospital for pterygium
excision noted the veteran was doing well and was using
refresh drops. Visual acuity was found to 20/20-2 in the
right eye and 20/20 in the left eye. The physician noted the
conjunctivas were well healed and there was no evidence of
recurrence; however the physician noted some mild surface
irregularity nasally. An August 2004 Naval Hospital record
noted actinic changes of conjunctiva temporally in both eyes
but denied any recurrence of the pterygia. Visual acuity was
found to 20/25 bilaterally. The physician concluded the
veteran was doing well status post excision without
recurrence and positive dry eyes.
The veteran underwent another VA examination in October 2005
to assess the severity of the condition. During this
examination the veteran described no changes in vision and
denied eye pain or problems with vision. He denied double
vision. He did not wear glasses. He described occasional
burning with bright light but denied other burning or pain.
He indicated the pterygium began around 1998. He used
artificial tears but did not treat with other eye
medications. He had a history of ptergium excision of both
eyes in 2003. There was no other history of eye disease or
eye trauma. There was no evidence of lazy eye and no family
history of eye disease.
Clinical examination reflected uncorrected vision of 20/25 in
the right eye and 20/30-1 in the left eye. With a manifest
refraction plano plus 1.25, axis 175 the vision in the right
eye was 20/20 and the left eye with a manifest refraction
plus 0.25 plus 0.75, axis 179 had vision of 20/20. An
addition of plus 2.5 resulted in 20/20 vision bilaterally.
Pupils showed no relative afferent pupilary defect. Visual
fields were full to finger count bilaterally. Motility was
normal and intraocular pressure was normal. Slit lamp
examination showed normal lids. Conjunctivae were normal
bilaterally. Corneas were clear and the anterior chamber,
iris, and lenses were normal bilaterally. There was no
evidence of pterygia in either eye. Dilated fundus
examination was normal. The cup to disc ratio was 0.5
bilaterally. Macula, vessels and periphery were within
normal limits. The impression was history of pterygium
excision in both eyes in 2003 without residual pterygium and
otherwise normal eye examination with normal vision
bilaterally.
Reviewing the evidence in light of the above rating criteria
reveals an increased evaluation is not warranted.
Specifically, Naval Hospital treatment records and VA
examinations clearly demonstrated corrected visual acuity of
20/20 and no loss of visual field. In fact, the veteran
denied any problems with his vision during the October 2005
VA examination.
In sum, the veteran has a history of pterygium and current
complaints of occasional foreign body sensation and
occasional blurring; however, the conditions have not been
shown to affect his visual acuity. While the veteran
contends that the pterygium has increased in severity, as a
layperson he is only competent to report observable symptoms
- not clinical findings which are applied to VA's Schedule
for Rating Disabilities. Compare Espiritu v. Derwinski, 2
Vet. App. 492 (1992) and Massey v. Brown, 7 Vet. App. 204
(1994).
Therefore, the preponderance of the evidence is against the
veteran's claim. Because the preponderance of the evidence
is against the claim, the benefit of the doubt rule does not
apply. 38 U.S.C.A. § 5107(b); see Gilbert v. Derwinski, 1
Vet. App. 49 (1990).
In reaching this decision, the potential application of
various provisions of Title 38 of the Code of Federal
Regulations have been considered, whether or not they were
raised by the veteran, as required by the holding of the
Court in Schafrath v. Derwinski, 1 Vet. App. 589 (1991),
including the provisions of 38 C.F.R. § 3.321(b)(1). The
Board finds that the evidence of record does not present such
an exceptional or unusual disability picture with such
related factors as marked interference with employment or
frequent periods of hospitalization as to render impractical
the application of the regular schedular standards. In the
absence of such factors, the Board finds that the criteria
for referral for the assignment of an extraschedular
evaluation pursuant to 38 C.F.R. § 3.321(b)(1) are not met.
Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown,
8 Vet. App. 218 (1995).
ORDER
Service connection for a left shoulder disability is denied.
Service connection for left Achilles tendonitis is denied.
Service connection for alopecia is denied.
Service connection for diabetes mellitus, type 2, is denied.
An initial compensable evaluation for bilateral pterygium is
denied.
REMAND
Concerning the issues of entitlement to increased evaluations
for hearing loss of the right ear, coronary artery disease,
bilateral ethmoid and maxillary sinus disease and
hemorrhoids, the Board notes that the July 2003 VA
examination of record is too remote in time to evaluate the
current severity of the disorders. See Allday v. Brown, 7
Vet. App. 517, 526 (1995) (where the record does not
adequately reveal the current state of claimant's disability,
fulfillment of statutory duty to assist requires a
contemporaneous medical examination - particularly if there
is no additional medical evidence that adequately addresses
the level of impairment of the disability since the previous
examination); see also Francisco v. Brown, 7 Vet. App. 55
(1994)(Where service connection has already been established
and an increase in the disability rating is at issue, it is
the present level of disability that is of primary concern).
Therefore, the veteran should be scheduled for VA
examinations to determine the current severity of his
disabilities.
Concerning the claim for hearing loss of the left ear, the
Board notes that the issue of hearing loss of the right ear
is being remanded for another examination. In this regard,
the updated audiological examination may include findings
that could affect the claim for service connection for left
ear hearing loss. The law provides that when a determination
on one issue could have a significant impact on the outcome
of another issue, such issues are considered inextricably
intertwined and VA is required to decide those issues
together. Harris v. Derwinski, 1 Vet. App. 180 (1991).
While the veteran was afforded a VA examination in July 2003,
this examination was insufficient for rating the claims for
entitlement to service connection for arthritis of the hands
and fingers and a left-sided sensory deficit and weakness.
See 38 C.F.R. § 4.2 ("If a diagnosis is not supported by the
findings on the examination report or if the report does not
contain sufficient detail, it is incumbent upon the rating
board to return the report as inadequate for evaluation
purposes"). Specifically, the examiner concluded the veteran
had mild arthritic changes of the hands; however, no x-ray or
other radiological testing was performed to confirm the
presence of the condition or evaluate the severity of the
condition. Significantly, the examiner diagnosed arthritis
within the one-year presumptive period but failed to provide
any clinical findings in which the Board could evaluate
whether or not the condition had manifested to a compensable
level.
Similarly, the examiner noted positive neurological symptoms
of the left side, but failed to diagnose any disability
related to these symptoms. It is well-settled that in its
decisions, the Board may not rely upon its own
unsubstantiated medical opinion. Allday v. Brown, 7 Vet. App.
517 (1995); Godfrey v. Brown, 7 Vet. App. 398 (1995); Traut
v. Brown, 6 Vet. App. 495 (1994); Colvin v. Derwinski, 1 Vet.
App. 171 (1991). As such, without further clarification, the
Board is without medical expertise to ascertain whether the
findings of the July 2003 examination provide a diagnosis or
medical nexus necessary to support a finding of service
connection for the claimed conditions. Id. As such, another
VA examination is warranted to ascertain whether the veteran
has a current disability related to the left-sided
symptomatology and whether any current disability is causally
or etiologically related to service.
After the appellant received notice of an August 2003 rating
decision that denied his claims for service connection for a
right upper quadrant disability, he requested the RO
"reconsider" this issue but specifically noted that if the
RO failed to grant the claim on reconsideration his statement
should serve as the official notice of disagreement and a
Statement of the Case should be issued. The RO readjudicated
the claim in November 2005 but continued the denial of
benefits. Although the veteran clearly indicated he
disagreed with continued denials of the claim, the claims
file does not contain any Statement of the Case (SOC) for the
issue of entitlement to service connection for a right upper
quadrant disability. The Board must therefore remand that
issue for the issuance of an SOC. See Manlincon v. West, 12
Vet. App. 238, 240 (1999).
Accordingly, the case is REMANDED for the following action:
1. The veteran should be afforded a
cardiovascular examination to ascertain
the present severity of his service-
connected coronary artery disease. Any
and all indicated evaluations, studies and
tests deemed necessary by the examiner
should be accomplished. The examiner is
requested to review all pertinent records
associated with the claims file,
particularly records of treatment for
coronary artery disease and offer comments
and an opinion as to the severity of the
veteran's coronary artery disease.
A clear rationale for all opinions is
required, to include a discussion of the
facts and medical principles involved.
Copies of all pertinent records in the
veteran's claims file, or in the
alternative, the claims file, must be made
available to the examiner for review in
connection with the examination.
2. The veteran should be afforded an
audiological examination to ascertain the
present severity of his service-connected
right ear hearing loss and to assess
whether the left ear manifests hearing
loss within the meaning of VA regulations.
Any and all indicated evaluations,
including audiometric and speech
recognition using the Maryland CNC should
be performed. The examiner is requested
to review all pertinent records associated
with the claims file, particularly records
of treatment for hearing loss and offer
comments and an opinion as to the severity
of the veteran's right ear hearing loss.
A clear rationale for all opinions is
required, to include a discussion of the
facts and medical principles involved.
Copies of all pertinent records in the
veteran's claims file, or in the
alternative, the claims file, must be made
available to the examiner for review in
connection with the examination.
3. The veteran should be afforded an
examination of the sinuses to ascertain
the present severity of his bilateral
themoid and maxillary sinus disease. Any
and all indicated evaluations, studies and
tests deemed necessary by the examiner
should be accomplished. The examiner is
requested to review all pertinent records
associated with the claims file and offer
comments and an opinion as to the severity
of the veteran's sinus condition.
A clear rationale for all opinions is
required, to include a discussion of the
facts and medical principles involved.
Copies of all pertinent records in the
veteran's claims file, or in the
alternative, the claims file, must be made
available to the examiner for review in
connection with the examination.
4. The veteran should be afforded an
examination to ascertain the present
severity of the veteran's service-
connected hemorrhoids. Any and all
indicated evaluations, studies and tests
deemed necessary by the examiner should be
accomplished. The examiner is requested
to review all pertinent records associated
with the claims file and offer comments
and an opinion as to the severity of the
veteran's hemorrhoids.
A clear rationale for all opinions is
required, to include a discussion of the
facts and medical principles involved.
Copies of all pertinent records in the
veteran's claims file, or in the
alternative, the claims file, must be made
available to the examiner for review in
connection with the examination.
5. The veteran should be afforded an
examination of the joints to ascertain the
nature, etiology, and severity of the any
currently diagnosed arthritis of the hands
and fingers. Any and all indicated
evaluations, studies and tests, including
appropriate radiological tests, including
x-rays, should be performed. The examiner
is requested to review all pertinent
records associated with the claims file,
particularly the appellant's service
medical records, and offer an opinion as
to the following:
a) If and only if arthritis of the hands
and fingers is diagnosed and confirmed by
x-ray evidence, the examiner should offer
an opinion as to the likely severity of
the veteran's arthritis of the hands and
fingers at the time of the veteran's
separation from service in September 2003,
including whether the arthritis of the
hands and fingers involved two or more
major joints or 2 or more minor joint
groups; and
b) Whether there is at least as likely as
not (at least a 50 percent probability)
that any currently diagnosed arthritis of
the hands or fingers is related to any
event, incident or symptoms noted during
service.
A clear rationale for all opinions is
required, to include a discussion of the
facts and medical principles involved. If
the examiner is unable to form an opinion
without resort to speculation, the
examiner should so explain. Copies of all
pertinent records in the veteran's claims
file, or in the alternative, the claims
file, must be made available to the
examiner for review in connection with the
examination.
6. The veteran should be afforded a
neurological examination to ascertain the
nature, etiology, and severity of the
veteran's claimed left-sided sensory
deficit and weakness. Any and all
indicated evaluations, studies and tests
deemed necessary by the examiner should be
accomplished. The examiner is requested
to review all pertinent records associated
with the claims file, particularly the
appellant's service medical records, and
offer an opinion as to the following:
a) Does the veteran have a current
disability or diagnosed disorder causing
the left-sided sensory deficit and
weakness?
b) If the veteran has a current disability
resulting in left-sided sensory deficit
and weakness, the examiner should indicate
whether it is at least as likely as not
(at least a 50 percent probability) that
any currently diagnosed neurological
disability or deficit affecting the left
side is related to any event, incident or
symptoms noted during service.
c) If the veteran has a current
disability resulting in left-sided sensory
deficit and weakness, the examiner should
indicate, if possible, what nerve or
nerves are involved and offer an opinion
as to the severity of the condition.
A clear rationale for all opinions is
required, to include a discussion of the
facts and medical principles involved.
Copies of all pertinent records in the
veteran's claims file, or in the
alternative, the claims file, must be made
available to the examiner for review in
connection with the examination.
7. The RO/AMC should take such additional
development action as it deems proper with
respect to the claims and follow any
applicable regulations and directives
implementing the provisions of the VCAA as
to its notice and development. When all
of the development requested has been
completed, the RO/AMC should readjudicate
the veteran's claims. If the benefits
sought are not granted, the veteran and
his representative should be furnished a
Supplemental Statement of the Case, and be
afforded a reasonable opportunity to
respond before the record is returned to
the Board.
8. The RO/AMC should re-examine the
veteran's claim pertaining to service
connection for a right upper quadrant
disability. If no additional development
is required, the RO should prepare an SOC
in accordance with 38 C.F.R. § 19.29,
unless the matter is resolved by granting
the benefit sought, or by the appellant's
withdrawal of the NOD. If, and only if,
the appellant files a timely substantive
appeal, should the increased initial
rating issue be returned to the Board.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).
______________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs